Gujarat High Court
M/S Baroda Surgical (India) Pvt. ... vs State Of Gujarat on 23 September, 2021
Bench: J.B.Pardiwala
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 342 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 7832 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 342 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7168 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
==========================================================
1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
==========================================================
M/S BARODA SURGICAL (INDIA) PVT. LTD.,THROUGH ITS CHAIRMAN
AND MANAGING DIRECTOR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
LETTERS PATENT APPEAL NO.342 OF 2020:
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR KRISHAL H
PATEL(9644) for the Appellant(s) No. 1,2
MR SAURIN A MEHTA(470) for the Appellant(s) No. 1,2
MR KM ANTANI, AGP for the Respondent No.1
MS MANISHA LAVKUMAR SHAH, SENIOR COUNSEL WITH MR
TIRTHRAJ PANDYA, ADVOCATE for the Respondent No.2
RULE SERVED(64) for the Respondent(s) No. 1,2
Page 1 of 9
Downloaded on : Sun Jan 16 17:43:57 IST 2022
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
SPECIAL CIVIL APPLICATION NO.7168 OF 2020:
MR DHAVAL DAVE, SENIOR COUNSEL WITH MR GUNVANT R
THAKAR(3801) for the Petitioners Nos.1, 2
MS BHARGAVI G THAKAR(5015) for the Petitioners Nos.1, 2
MR KM ANTANI, AGP for the Respondents Nos.1, 3
MS MANISHA LAVKUMAR SHAH SENIOR COUNSEL WITH MR.
TIRTHRAJ PANDYA(6685) for the Respondent No.2
MR SHALIN MEHTA SENIOR COUNSEL WITH MR KRISHAL H
PATEL(9644) for the Respondent No.4
MR SAURIN A MEHTA(470) for the Respondent No.4
====================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/09/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1 Since the issues raised in both the captioned matters are
interrelated and the parties are also the same, those were taken up for
hearing analogously and are being disposed of by this common
judgement and order.
2 For the sake of convenience, we first take up the Special Civil
Application No.7168 of 2020.
3 By this writ application under Article 226 of the Constitution of
India, the writ applicants have prayed for the following reliefs:
"7(a) allow this petition with costs; and/or
(b) declare and hold that respondent no.4-M/s. Baroda Surgical (India)
Pvt. Ltd is not fulfilling the eligibility criteria and terms and conditions
of tender TE NO.GMSCL/D-658/RC/2019-20 for Absorbent Gauze ISI
Mark 20 mtr x 90 cms and Bandage Cloth ISI Mark 20 mtr x 90 cms
issued by respondent no.2 - Gujarat Medical Service Corporation
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
Limited and therefore, respondent no.4 is not qualified for the
allotment of rate contract for 60% quantity order and petitioners are
qualified for allotment of rate contract for 60% quantity order of above
mentioned tender notice by the respondent no.2; and/or
(c) declare and hold that respondent no.4 - M/s. Baroda Surgical
(India) Pvt. Ltd is required to be debarred for five years considering
para - 7 of the Debarment Policy of Gujarat Medical Services
Corporation Limited - respondent no.2; and/or
(d) direct respondent no.2 - Gujarat Medical Services Corporation
Limited to proceed further with the TE NO.GMSCL/D-658/ RC/2019-20
for Absorbent Gauze ISI Mark 20 mtr x 90 cms and Bandage Cloth ISI
Mark 20 mtr x 90 cms and to allot rate contract for 60% quantity order
of the said tender to the petitioners; and / or
(e) pending admission and final hearing of this petition, restrain
respondent no.2 - Gujarat Medical Services Corporation Limited from
allotment of rate contract for 60% quantity order of TE NO.GMSCL/D-
658/RC/2019-20 for Absorbent Gauze ISI Mark 20 mtr x 90 cms and
Bandage Cloth ISI Mark 20 mtr x 90 cms to respondent no.4 - M/s.
Baroda Surgical (India) Pvt. Ltd. considering the terms and condition
no.10 of tender form and debarment policy of respondent no.2; and /
or
(f) grant any other relief in the nature of interim relief or pass any
other order in the nature of interim order which the Hon'ble Court may
consider as just and proper in the facts and circumstances of the case."
4 The facts giving rise to this writ applicant may be summarised as
under:
5 The writ applicant No.1 is a surgical company and is engaged in
the business of supplying dressing materials including Bandage Cloth,
Absorbent Gauze, Roll Bandage, etc. to the State Government,
Corporations / Boards under the State Government, various corporate
hospitals.
6 The respondent No.2 herein floated an online Tender on 9 th
November 2019 for procuring Absorbent Gauze ISI Mark 20 mtrs x 90
cms and Bandage Cloth ISI Mark 20 mtrs x 90 cms. The last date of
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
online submission of the technical bid and commercial bid was 30 th
November 2019 upto 15.55 Hours.
7 As the writ applicants were interesting in offering their bid, they
downloaded the Tender documents and submitted their offer on 29 th
November 2019 within the stipulated time period.
8 It appears that the respondent No.4 herein namely M/s. Baroda
Surgical (India) Pvt. Ltd. also participated in the Tender process and
submitted its offer. Upon opening of the commercial bid price of
Rs.188.00 for the Absorbent Gauze and price of Rs.335 quoted for the
Bandage Cloth, the respondent No.4 was declared L-1 and the writ
applicants were declared as L-2.
9 It appears that the purchase committee of the respondent No.2
took a decision in its meeting convened on 5 th March 2020 to allot 60%
of the contract order to the respondent No.4 herein and 40% to the writ
applicants.
10 All of a sudden thereafter, the writ applicants herein filed a
representation addressed to the respondent No.2 to stop the further
process of allotment of contract work to the respondent No.4 on the
ground that the writ applicants had come to know that the respondent
No.4 is involved in submitting a fabricated / forged Test Report of the
Central Drugs Laboratory, Kolkata in the year 2012. On such ground, the
writ applicants requested the respondent No.2 to allot 100% of the
contract in their favour.
11 The writ applicants also brought to the notice of the respondent
No.2 its debarment policy, more particularly, the Clause 7 of the said
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
policy, which provides that in case of submission of fabricated
documents by a firm, the action of debarment for five years would be
undertaken against such firm / company. The respondent no.2 took
cognizance of the aforesaid and thought fit to issue a show cause notice
dated 22nd June 2020 calling upon the respondent No.4 to show cause as
to why the firm should not be debarred / blacklisted for its act of
submitting the alleged fabricated / false Test Report.
12 The above referred show cause notice came to be challenged by
the respondent No.4 herein by filing the Special Civil Application
No.7168 of 2020. The said writ application came to be rejected by a
learned Single Judge of this Court vide order dated 6 th July 2020. The
respondent No.4 herein, being dissatisfied with such order passed by the
learned Single Judge, preferred the Letters Patent Appeal No.342 of
2020 (connected matter). In the appeal filed by the respondent No.4, the
following order was passed by a Coordinate Bench to which one of us (J.
B. Pardiwala, J.) was a party dated 22nd July 2020:
"Order in R/Letters Patent Appeal No.342 of 2020
Heard Mr. Shalin Mehta, learned Senior Counsel assisted by Mr.
Saurin Mehta and Mr. Krishal Patel, learned advocates for the
appellants and Ms. Manisha Lavkumar Shah, learned Government
Pleader for the State respondents Nos.1 and 2.
Admit.
Order in Civil Application No.1 of 2020
Issue Notice. No notice need be served as Ms. Manisha Lavkumar
Shah, learned Government Pleader waives service of notice.
Having heard the learned advocates for the parties, there is a
case for interim relief made out. Till further orders of this Court, the
further proceedings pursuant to the impugned show cause notice dated
22nd June, 2020 issued by the respondent No.2 shall remain stayed. As
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
and when counter affidavit is filed along with the stay vacation
application, the matter would be listed."
13 Thus, the picture that emerges as on date is that the further
proceedings of the show cause notice issued to the respondent No.4
herein have been stayed by virtue of the above referred order, and at the
same time, the writ applicants of the Special Civil Application No.7168
of 2020 want this Court to pass an appropriate order directing the
respondent No.2 to take appropriate action against the respondent No.4
and also direct the respondent No.2 - Corporation to allot 60% of the
contract order to the writ applicants so as to make it 100%.
14 We have heard Mr. Dhaval Dave, the learned Senior Counsel
assisted by Ms. Bhargavi G. Thakkar, the learned advocate appearing for
the writ applicants, Mr. Shalin Mehta, the learned Senior Counsel
assisted by Mr. Saurin A. Mehta, the learned advocate appearing for the
respondent No.4 and Ms. Manisha Lavkumar Shah, the learned Senior
Counsel appearing for the respondent No.2 - Corporation.
15 This litigation appears to be an outcome of business rivalry
between the writ applicants and the respondent No.4. Both are into the
same business. Prima facie, it appears that the writ applicants were
interested to procure 100% contract order. The respondent No.2 -
Corporation thought fit to allot 60% of the contract order to the
respondent No.4 herein and 40% to the writ applicants. All of a sudden,
the writ applicants brought to the notice of the Corporation that way
back in the year 2012, the respondent No.4 had furnished a bogus / false
Test Report of the Central Drugs Laboratory, Kolkata. According to the
writ applicants, in such circumstances, the Corporation should not have
permitted the respondent No.4 in the first instance to participate in the
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
Tender process. It is the case of the writ applicants that assuming for the
moment that the Corporation was not aware of the same, but having
been made aware of such alleged false / fabricated certificate purported
to have been issued by the Central Drugs Laboratory, Kolkata, the
contract in favour of the respondent No.4 should be terminated and the
same should be awarded to the writ applicants.
16 The stance of the respondent No.4 is that the allegations as
regards production of the alleged false / fabricated / concocted
certificate referred to above are baseless and have been levelled only
because of the business rivalry. It is the case of the respondent No.4 that
the Corporation should not have issued a show cause notice after a
period of almost eight years and the belated action which the
Corporation proposes to initiate against the respondent No.4 without
any proper verification or inquiry could be termed as arbitrary.
17 It appears that there are two Reports on record said to have been
issued by the Central Drugs Laboratory, Kolkata. These two Reports are
relating to a sample of a Bandage which was supplied by the respondent
No.4 to the Corporation. This sample appears to have been collected way
back in the year 2012. The sample was tested by the Laboratory at
Kolkata and in the first certificate, which was issued, the sample was
found to be not meeting with the parameters prescribed in law. It
appears that all of a sudden, the Court of the Judicial Magistrate at
Gandhinagar received one another report from the Central Drugs
Laboratory, Kolkata, with respect to the same sample, and in the said
report, it has been stated that the sample meets with the parameters
prescribed in law. Thus, one Report says that something is wrong with
the sample and the second Report exonerates the respondent No.4. The
question is from where did the second Report originate. There does not
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
seem to be any inquiry / investigation in this regard at the instance of
the Corporation. The stance of the Corporation is that the Court of the
Judicial Magistrate at Gandhinagar closed the proceedings ,and in such
circumstances, nothing further could be done by the Corporation.
18 We are of the view that this litigation should be put to an end. So
far as awarding of the 60% contract now at this point of time in favour
of the writ applicants is out of question. We are saying so because even
otherwise the contract period is come to an end in December 2021. The
Corporation has already issued a fresh Tender Notice. In such
circumstances, we would not like to disturb the work of contract. The
writ applicants shall complete their 40% of the contract work and at the
same time, the respondent No.4 shall also complete the 60% of the
contract work. We are also of the view that it is too late in the day to
proceed further with the show cause notice issued to the respondent
No.4. The entire action is sought to be taken after a period of almost
eight years. We would not have otherwise restrained the Corporation
from proceeding further with the show cause notice, but even for the
purpose of issuing a show cause notice, there has to be some tangible
material on record to prima facie indicate that the respondent No.4 is
responsible for the so-called second Report of the Central Drugs
Laboratory, Kolkata, which according to the writ applicants, is a
fabricated Report.
19 However, we are of the firm view that what has been alleged
should be inquired / investigated in one way or the other. The
Corporation should make all possible endeavours to ascertain how did
the second Report come on record. How the Court at Gandhinagar
received such Report, more particularly, when the Central Drugs
Laboratory, Kolkata outright denies having prepared and forwarded such
C/LPA/342/2020 JUDGMENT DATED: 23/09/2021
second Report. This is suggestive of the fact that someone has created
the second Report. Who is responsible for this should have been
investigated in the year 2012 itself, more particularly, when the
Corporation was aware about the two conflicting Reports. Ms. Shah, the
learned Senior Counsel appearing for the Corporation submitted that the
Corporation shall look into the matter and definitely try to ascertain who
is responsible for the second Report.
20 We are of the view that the proceedings of the impugned show
cause notice for the present should be closed. In future, if the
Corporation is able to gather some materials and if it is found that it is
the respondent No.4 who is responsible for creating or fabricating the
second Report of the Central Drugs Laboratory, Kolkata to save its skin,
then it is expected of the Corporation to initiate appropriate action
against the respondent No.4 in accordance with law.
21 With the aforesaid, the Special Civil Application stands disposed
of. So far as the appeal is concerned, the same is allowed. The impugned
order passed by the learned Single Judge is set aside. The respondent
No.2 - Corporation shall act in accordance with what has been observed
by this Court in the present order. Consequently, the connected Civil
Application also stands disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
CHANDRESH
